Keane v. Mihaly

• Decision Date: 07 October 1970
• Citation: 90 Cal.Rptr. 263,11 Cal.App.3d 1037
• Parties: Peter KEANE et al., Petitioners, v. Emmery MIHALY, Registrar of Voters, County of San Francisco, et al., Respondents. Civ. 28707.
• Court: California Court of Appeals Court of Appeals

Page 263

90 Cal.Rptr. 263

11 Cal.App.3d 1037

Peter KEANE et al., Petitioners, v. Emmery MIHALY, Registrar of Voters, County of San Francisco, et al., Respondents.

Civ. 28707.

Court of Appeal, First District, Division 4, California.

Oct. 7, 1970.

Paul N. Halvonik, Charles C. Marson, American Civil Liberties Union, San Francisco, for petitioners.

Thomas M. O'Connor, City Atty., Burk E. Delventhal, Deputy City Atty., San Francisco, for respondents.

DEVINE, Presiding Justice.

The constitutionality by standards of the Constitution of the United States of the one-year residency requirement for voting in California (Cal.Const., art. II, § 1) is challenged by petition for writ of mandate, which was filed with the Supreme Court of California and assigned by that court to us.

Petitioners are graduates of the Law School of Southern Methodist University and are admitted to practice in California. They allege that they came to San Francisco on November 29, 1969, immediately established residence therein, and have remained residents continuously since that date. They allege that they meet every requirement for voting in this state except that they will not have been residents of the state for one year preceding the November 3, 1970, election. In July 1970, well within the deadline for registering for the upcoming election, petitioners appeared in the Office of the Registrar of Voters and attempted to register. It is alleged that they were refused registration solely on the ground that they did not meet the one-year residency requirement.

In the answer and return to the alternative writ, respondents deny the above facts for lack of information or belief, except that respondent Mihaly admits and alleges that he refused to register petitioners because they did not 'meet the qualifications imposed by law.' A fair interpretation of the pleadings is that the one year's residency requirement alone caused the denial of registration.

I. The Issue of Mootness

The first question is whether the petition is moot because the deadline for registration, September 10, 1970, has passed. We hold that it is not moot. Elections Code, section 203 provides: 'Registration of electors shall be in progress at all times except during the 53 days immediately preceding any election, when registration shall cease for that election as to electors residing in the territory within which the election is to be held.' Respondents argue that their authority to register voters for the November 3, 1970, election terminated on September 10, 1970. Therefore, they contend, the petition is moot, as mandate will not lie when respondents no longer have legal authority to discharge an alleged duty because the time for so doing has expired. (Treber v. Superior Court, 68 Cal.2d 128, 134, 65 Cal.Rptr. 330, 436 P.2d 330.) Petitioners attempted to register within the deadline, and if their challenge to the residency requirement is meritorious, they were unlawfully denied the right to do so.

Section 217 of the Elections Code provides: 'No person shall be registered except as provided in this chapter unless upon the production and filing of a certified copy of a judgment of the superior court directing registration to be made.' Section 350 of the Elections Code provides: 'If the county clerk refuses to register may qualified elector in the county, the elector may proceed by action in the superior court to compel his registration.' Wherefore, the Elections Code provides a procedure by which the courts may direct registration, even after the deadline has passed, if a qualified elector has been denied registration. Petitioners sought relief in the superior court, as provided in section 350. If respondents' argument be sustained, there would be no remedy in a case of arbitrary refusal by the Registrar of Voters to accept registrations on the last day of the registration period. The purpose of section 203 is to facilitate the orderly and accurate preparation of voting lists (Perham v. City of Los Altos, 190 Cal.App.2d 808, 810, 12 Cal.Rptr. 382), and to prevent illegal voting by providing, in advance of an election, an authentic list of qualified electors (Welch v. Williams, 96 Cal. 365, 367, 31 P. 222). Neither purpose would be served by interpreting section 203 to be an absolute prohibition against registration less than 53 days before an election, even though a qualified elector can show that he was unlawfully denied the opportunity to register before the deadline.

II. The Issue of Constitutionality

Preliminarily, we observe that petitioners do not attack the validity of the registration statutes or the requisite of 90 days' residence within a county, but only the provision that citizens must be residents of the state for one year in order to vote. An exception to the one-year residency requirement is made for presidential elections; persons who have resided in the state for at least 54 days but less than one year are entitled to vote in California for presidential electors only, if they meet all other eligibility requirements, and if they are qualified to vote in the state from which they came. (Cal.Const., art. II, § 1 1/2; Elec. Code, § 751.) ¹

1. The Standard To Be Applied

The standard of equal protection as applied to cases involving the right of citizens to vote, as established in recent years by the United States Supreme Court, and as firmly expressed by the Supreme Court of this state, is that the exclusion from franchise must be necessary to promote a compelling state interest. (Kramer v. Union Free School Dist., 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583; Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647; Otsuka v. Hite, 64 Cal.2d 596, 51 Cal.Rptr. 284, 414 P.2d 412; Castro v. State of California, 2 Cal.3d 223, 85 Cal.Rptr. 20, 466 P.2d 244.)

The standard now prevailing has superseded the older one which still obtains in many matters of less fundamental importance: that regulatory distinctions among persons established by state constitutions or statutes must be sustained against equal protection challenge unless they amount to an irrational or unreasonable discrimination. The older standard was applied in Drueding v. Devlin, D.C., 234 F.Supp. 721, 725, in which residential requirements of the State of Maryland (one year in the state, six months in the county) for voting in elections for President and Vice President of the United States were upheld. ² The decision of the United States District Court was affirmed by the United States Supreme Court (380 U.S. 125, 85 S.Ct. 807, 13 L.Ed.2d 792) in a per curiam opinion which says no more than, 'The judgment is affirmed.' Respondents urge that we must or should regard ourselves bound by the Drueding decision as thus affirmed, and also by the decision of Pope v. Williams, 193 U.S. 621, 24 S.Ct. 573, 48 L.Ed. 817, rendered in 1904. In the Pope case, which sustained the validity of a Maryland durational residency statute, the concept of equal protection of the laws was so far removed from the suffrage laws that the court remarked that a state could limit, constitutionally, voting to native citizens. The court expressed doubt that a state could have a different residency requirement for those who came from one state than for those who came from another, but even in this hypothetical case, unserved its opinion. It was not until 1965, in Carrington v. Rash, 380 U.S. 89, 95, 85 S.Ct. 775, 13 L.Ed.2d 675, that the Supreme Court held that the equal protection clause applies to state qualifications for voting. The standard of necessity for a compelling state interest was set down in 1969 in Kramer v. Union Free School Dist., 395 U.S. 621, 89 S.Ct. 1886, and Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897.

Thus, while we surely would follow the Pope and Drueding cases had not the United States Supreme Court in later cases established a new standard, and the Supreme Court of this state clearly recognized and announced the change, we should be dishonoring rather than respecting the decisions of the highest tribunal of our nation if we did not follow its later expressions of constitutional interpretation.

Respondents argue that the new standard applies only when the classificastion is of the suspect' kind, a motive for unfair discrimination being discernible. But in Castro v. State of California, 2 Cal.3d 223, 85 Cal.Rptr. 20, 466 P.2d 244, the Supreme Court of this state remarked (at pp. 229--230) that its consideration of the motives which brought about the literacy test, although relevant to an understanding of the court's conclusion, was in no way crucial to that holding.

Two recent decisions by three-judge United States District Courts have applied the 'compelling necessity' standard to voter residency requirement laws and have held, respectively, that the one-year constitutional provision of the Commonwealth of Massachusetts is invalid (Burg v. Canniffe (D.C.Mass.) 315 F.Supp. 380 (1970)), and that the one year and three months' durational residency requirement of the State of Tennessee likewise is unconstitutional (Blumstein v. Ellington (D.C.M.D.Tenn.) (Civil Action No. 5815, Aug. 31, 1970)).

In Sei Fujii v. State of California, 38 Cal.2d 718, 730--731, 242 P.2d 617, the Supreme Court of this state, recognizing that the latest declarations of the United States Supreme Court on the California Alien Land Law were irreconcilable with the approach previously taken in a case which had not been overruled (and in which, unlike the Drueding case, there had been a full-fledged opinion), followed the more recent decisions.

We accept, therefore, and we proceed to apply to the case at hand the constitutional principle that the franchise may be denied to citizens only if the end be protection of a compelling interest of the state and if the means taken are necessary. Respondents have suggested two general reasons for upholding the residency rule. The first is the need for having an...